Gant v. Winn

Filing 10

OPINION and ORDER Denying Petition For Writ Of Habeas Corpus, A Certificate Of Appealability, And Permission To Appeal In Forma Pauperis 1 . Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MACEO GANT,
Petitioner,

Civil Action No. 16-CV-12893

v.

HON. BERNARD A. FRIEDMAN

THOMAS WINN,
Respondent.
_________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, A CERTIFICATE OF APPEALABILITY,
AND PERMISSION TO APPEAL IN FORMA PAUPERIS
Michigan prisoner Maceo Gant has filed this habeas petition under 28 U.S.C. §
2254 [docket entry 1].

Petitioner was convicted after he pled no contest in the Kent Circuit

Court to one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b, and
one count of second-degree criminal conduct. Mich. Comp. Laws § 750.520c.

Petitioner was

sentenced to life imprisonment for the first-degree conviction and nine and a half to fifteen years
for the second-degree conviction. The petition raises two claims: petitioner’s trial counsel was
ineffective for failing to (1) challenge the charges or seek a lesser sentence based petitioner’s
mental illness, and (2) raise claim (1) on direct appeal.
I.

BACKGROUND

Petitioner allegedly sexually molested his young step-daughter over a period of
years.

This came to light when the victim’s mother discovered petitioner engaging in a sex act

with the victim.

Petitioner was initially charged with three counts of first-degree criminal

sexual conduct, one count of second-degree criminal sexual conduct, and being a fourth-time
habitual felony offender.

At a plea hearing held in August 2012, the prosecutor put the terms of the plea
bargain on the record.

In exchange for petitioner entering a guilty plea to one count of

first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, the
prosecutor agreed to dismiss the two other counts of first-degree criminal sexual conduct and the
fourth-time habitual felony offender charge, and to recommend a minimum sentence within the
calculated sentencing guideline range of 225 months to 375 months or life imprisonment.
Petitioner testified under oath that he understood the first-degree charge and that it carried a
maximum penalty of life imprisonment.

He also acknowledged the second-degree charge and

that it carried a maximum sentence of 15 years.
Petitioner was then informed of, and agreed to waive, each of his trial rights.
Petitioner indicated that he read and understood the waiver of rights form that he signed.

The

court further advised petitioner that by accepting the plea agreement, he waived any future claim
of having been forced to plea. Petitioner indicated that he understood. Petitioner and defense
counsel acknowledged that the plea agreement had been correctly stated by the prosecutor.
Petitioner denied that anyone had promised him anything in addition to the terms
of the agreement.

Petitioner stated his desire to plead no contest to the two charges, denied that

anybody had threatened him in any way to cause him to enter his plea, and confirmed that
entering his no contest plea was his choice alone.
Defense counsel referred to the police report for a factual basis for the plea.

He

stated that between October 2004 and April 2012, petitioner engaged in criminal sexual
penetration with a child who was under 13 years of age. Petitioner was the victim’s step-father.
The trial court accepted Petitioner’s plea and understanding, voluntary, and accurate.

Both

attorneys stated that they were not aware of any promises, threats, or inducements other than
2

what was placed on the record.

Defense counsel stated: “I did advise my client of our

discussions at sidebar and the plea negotiations with regards to this case. He’s been fully aware –
he’s been made fully aware of the plea negotiations that have been placed on the record and my
efforts with those.”
At the subsequent sentencing hearing, the victim’s therapist read a letter from the
victim into the record. The victim stated that petitioner began sexually molesting her at age
five. She stated, “It was painful, and I was really scared. I tried to tell him ‘no.’ I tried to make
him stop, but I couldn’t. If I told him to stop, he kept doing it anyway.”

Rule 5 Materials

Exhibit 3 p. 7. She explained how she became suicidal, and the abuse only stopped when her
mother discovered petitioner molesting her.
Petitioner’s counsel stated that petitioner wished to withdraw his plea because he
understood that he would be pleading to a count of third-degree criminal sexual conduct and
fourth-degree criminal sexual conduct.

Counsel then indicated that he had informed petitioner

that if his plea was withdrawn, he would face trial on the original charges.

Counsel asked

petitioner how he wished to proceed, and petitioner indicated that he wished to go forward with
sentencing. Petitioner indicated that he read the presentencing report, and that its contents were
accurate, but declined to make any allocution. The trial court then sentenced petitioner under
the terms of the plea agreement.
Petitioner obtained appellate counsel who filed a motion for resentencing and for
an evidentiary hearing. Counsel raised a number of sentencing guideline claims.

To resolve

one of petitioner’s challenges, the court accepted testimony from the victim’s mother as to
injuries suffered by the victim; she testified:
He had threatened her, threatened to kill her. Told her that he
would kill her brother and sister. Told her he would kill me. He
3

would injure, you know, anyone real bad, you know, close, that she
loved if she tells anyone. Told her that I wasn’t gonna love her
anymore, I was gonna give her away. He told her a whole lot of
horrible things, what prevented her from tellin’ me.
Id. at Exhibit 4 p. 19. The court rejected each of petitioner’s sentencing guideline challenges,
and denied his motion for resentencing.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals, which raised the following claims:
I. The trial court erred in the scoring of certain offense variables.
II. The trial court erred by conducting an evidentiary hearing
without Gant=s presence.
The Michigan Court of Appeals denied the application for leave to appeal “for
lack of merit in the grounds presented.” People v. Gant, No. 316738 (Mich. Ct. App. Oct. 25,
2013).

Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme

Court, raising the same claims.

The Michigan Supreme Court denied the application because it

was not persuaded that the questions presented should be reviewed by the Court. People v.
Gant, 846 N.W.2d 400 (Mich. 2014) (table decision).
Petitioner returned to the trial court and filed a motion for relief from judgment,
raising the two claims that now form his habeas claims. The trial court denied the motion for
relief from judgment for petitioner’s failure to demonstrate “good cause” and “actual prejudice”
for failing to raise the claims on direct appeal, and because the claims lacked merit.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals denied the delayed application for leave to appeal for
failure to establish relief under Michigan Court Rule 6.508(D)(3)(a)&(b). People v. Gant, No.
328315 (Mich. Ct. App. Sept. 29, 2015).

Petitioner applied for leave to appeal this decision in
4

the Michigan Supreme Court but was denied relief under Michigan Court Rule 6.508(D).
People v. Gant, 882 N.W.2d 143 (Mich. 2016) (table decision).
II.

STANDARD OF REVIEW

Petitioner’s claims are reviewed using the standards established by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceedings.
28 U.S.C. § 2254(d).
A state court’s decision is “contrary to” . . . clearly established law if
it “applies a rule that contradicts the governing law set forth in
[United States Supreme Court cases]” or if it “confronts a set of
facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from
[Supreme Court] precedent.”
Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S.
362, 405–06 (2000).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts’ of petitioner’s
case.”

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413).
5

However, “[i]n order for a federal court find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. . . . The state court’s application must have been ‘objectively unreasonable.’” Id. at
520–21 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
“[W]hile the principles of ‘clearly established law’ are to be determined solely by
resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in
assessing the reasonableness of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d
488, 493 (6th Cir. 2007). Finally, a federal habeas court must presume the correctness of state
court factual determinations, see 28 U.S.C. § 2254(e)(1), and a petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61
(6th Cir. 1998). Put differently, only factual determinations that are “objectively unreasonable in
light of the evidence presented in the state-court proceeding” will be overturned. McKinney v.
Ludwick, 649 F.3d 484, 488 (6th Cir. 2011) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
III.

ANALYSIS

Petitioner claims that he was denied the effective assistance of counsel in the trial
court and on appeal. Petitioner asserts that he informed his trial attorney that he had a long
history of mental health problems and had been hospitalized in a psychiatric ward. He asserts
that he was diagnosed with Post-Traumatic Stress Disorder and Schizoaffective Disorder.
Petitioner indicates that his symptoms included auditory hallucinations telling him to hurt
6

someone.

Records indicate hospitalizations for suicide attempts in 2008 and 2011.

The record

from the mental health provider dated May 13, 2011, indicates, however, “his mood was bright
and his manner of relating was appropriate. Maceo did not report symptoms of his illness at this
time. Records show he experiences mild depression and anxiety which he is able to manage.”
Rule 5 Materials Exhibit 7 p. 41. Nevertheless, petitioner asserts that his mental illness should
have been used as a defense to the charges or at least as a mitigating factor at sentencing.
Respondent asserts that petitioner’s ineffective assistance of trial counsel claim is
procedurally defaulted. Under the procedural default doctrine, a federal habeas court will not
review a question of federal law if a state court’s decision is adequate to support the judgment
and rests on a procedural state law ground independent of the federal question. See Coleman v.
Thompson, 501 U.S. 722, 729 (1991).

However, procedural default is not a jurisdictional bar to

review of a habeas petition on the merits.

See Trest v. Cain, 522 U.S. 87, 89 (1997).

Additionally, “federal courts are not required to address a procedural-default issue before
deciding against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir.
2003).

It may be more economical for the habeas court to simply review the merits of the

petitioner’s claims, “for example, if it were easily resolvable against the habeas petitioner,
whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S.
at 525.

In the present case, the Court deems it more efficient to proceed directly to the merits

because petitioner alleges that his appellate counsel was ineffective for failing to raise the
defaulted claim on direct review.
To establish ineffective assistance of counsel, a defendant must show both that
counsel’s performance was deficient, i.e., “that counsel’s representation fell below an objective
standard of reasonableness,” and that the deficient performance resulted in prejudice to the
7

defense. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).

The test for prejudice is whether “there is a reasonable

probability that, but for counsel=s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
In the context of guilty pleas, petitioner must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58–59 (1985).

Furthermore,

petitioner must show that, but for counsel=s errors, he would not have pleaded guilty, because
there would have been at least a reasonable chance he would have been acquitted at trial. Id. at
58–60.

If examination of the totality of the circumstances shows that the petitioner would in all

likelihood have been convicted of the same, or greater, charges after a trial, he cannot show that
the advice to plead guilty prejudiced him.

Id.

The trial court considered and rejected petitioner’s ineffective assistance of trial
counsel claim on the merits:
Considering first the claim that trial counsel was ineffective
due to her failure to investigate defendant=s mental health history
and explore potential defenses, defendant does not claim, and the
record would not support, that he was mentally incapable of
understanding the charges or that he was unable to assist his
lawyer in a reasonable and rational manner. The transcripts from
the plea and sentencing hearings document that defendant was able
to cogently respond to questions from the bench. Defendant first
argues that information in the Pine Rest Discharge Summary
appended to this motion could have been used as part of his
defense because from this summary it was “clear that he did not
pose a risk to the community, and specifically, that he posed no
8

risk for sexual activity or victimization.” [Brief, p 9]. Assuming
for the sake of argument only that defendant is entitled to raise
ineffective assistance arguments related to the issue of factual
guilt, this is not a case where there is any uncertainty regarding
whether sexual activity occurred or the identity of the perpetrator.
This case involved the systematic sexual penetration of a
stepdaughter under the age of 13 beginning in October of 2004
through April of 2012; thus, trial counsel=s decision not to
investigate whether mental health treatment in 2011 might impact
the defense was not unreasonable and did not affect the outcome of
the case. Defendant’s second argument, that the failure to
investigate deprived defendant of “potential facts in mitigation
during the sentencing phase,” fails to recognize that in this case the
plea agreement specified the particular range to be used: 225-375
months or life which is the range for level F-V for class A crimes.
In light of the compelling statements made by the mother and the
victim’s representative at sentencing, evidence of past mental
health issues would not have changed the sentence imposed. This
ineffective assistance of counsel claim is meritless.
Turning next to defendant=s claim that his trial counsel
failed to properly inform him of the charges to which he was
pleading and the probable sentence, careful review of the August 6,
2012 plea hearing transcript clearly demonstrates that after the
prosecutor stated the terms of the plea agreement including the
recommended guideline range, the Court not only articulated each
charge and the maximum possible penalty, but also specifically
asked defendant if he understood that if his pleas were accepted, he
would “be giving up any claim that the pleas were the result of
promises or threats that were not disclosed at this proceeding.”
Defendant responded affirmatively. [Plea Tr, p 6]. In light of
defendant’s expressed understanding of the plea agreement and
charges, defendant is unable to establish that he would not have
entered the pleas based on the information provided by his trial
counsel. Thus, this ineffective assistance of counsel claim cannot
succeed.
Finally, defendant claims that his trial attorney
inappropriately filed a sentencing memorandum which contained
admissions and inflammatory remarks without his knowledge or
consent “that could only be construed as and [sic] effort to have
Defendant sentenced to a life term.” The memo in question
contained a fervent plea that this Court consider a plea agreement
offered in another Kent County Circuit Court case with similar
charges and sentence defendant accordingly. This memorandum
was discussed at sentencing and trial counsel stated that a copy had
9

been sent to her client. Although present, defendant did not object
to the contents of the memorandum; did not deny that he had
received his copy; and did not object when counsel argued that
based on differences between the cases, defendant was more
worthy of the lower sentence offered to the other individual.
Although persuasively argued, this Court concluded that the
statement of the victim’s mother, who caught defendant raping her
daughter, and the victim’s representative, who described how the
defendant systematically abused and threatened her over a period
of years, described a horrific pattern of conduct that warranted the
maximum sentence. Defendant has failed to demonstrate that, but
for an error of counsel, the sentence imposed would have been
different or that the sentence imposed was fundamentally unfair.
Rule 5 Materials Exhibit 8 pp. 3–4.
The trial court reasonably rejected petitioner’s claim on the grounds that he was
not prejudiced by any of his counsel’s allegedly deficient actions. Petitioner did not present the
state courts, nor has he presented this Court, with any convincing evidence that his counsel had a
viable defense to the charges based on his mental illness.

Petitioner’s discharge summary from

a mental health provider falls far short of showing that there was a reasonable probability he
could have succeeded at trial based on an insanity defense. See, e.g., Sneed v. Johnson, 600 F.
3d 607, 611 (6th Cir. 2010).

Because petitioner fails to show that he has an expert who would

testify that he was legally insane at the time of the offenses, counsel’s failure to raise an insanity
defense was not prejudicial to petitioner. See Abdur’Rahman v. Bell, 226 F.3d 696, 715 (6th
Cir. 2000).
Indeed, the crux of the report provided by petitioner indicates that though he
suffered from mental illnesses during some of the time he was abusing the victim, he was
otherwise functioning fairly well and conforming his actions to the requirements of the law.
The charges against petitioner involved allegations that he sexually assaulted his young
step-daughter over a period of many years, and the victim’s mother caught petitioner in the act.
10

Nothing suggests that he had a viable insanity defense that would have covered the multiple
years of sexual abuse. The portion of the report that indicates petitioner claimed hearing voices
telling him to hurt someone also indicates that petitioner “does not act on the voices and he
utilizes coping skills that involve thinking about his children and wanting to be a positive role
model for them.”

Rule 5 Materials Exhibit 7 p. 40.

As far as the failure to present a more compelling case for leniency at sentencing,
the state court flatly rejected the claim, stating that the sentence would have been the same even
if it had been presented with evidence of petitioner’s mental health issues. This Court will not
second guess the decision of the state court that fully and fairly reviewed the sentencing
information report, heard the allocution of the victim’s representative and mother, and
considered the materials that petitioner claims were omitted at sentencing. The state court
reviewed this claim in light of all the evidence presented, and its conclusion that petitioner’s
sentence would have been unaffected by the new materials is not objectively unreasonable.
In any event, petitioner has completely failed to demonstrate that, in light
of the overwhelming evidence against him, his counsel’s strategy of trying to secure the best
possible plea deal constituted deficient performance.

“It should go without saying that the

absence of evidence cannot overcome the ‘strong presumption that counsel’s conduct [fell]
within the wide range of reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17
(2013) (quoting Strickland, 466 U.S. at 689).
Petitioner’s ineffective assistance of appellate counsel claim fails with his claim
regarding his trial counsel. It is not ineffective assistance for appellate counsel to decide not to
raise meritless claims. See Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013) (“[A] petitioner
cannot show that appellate counsel was ineffective for failing to raise a claim on appeal if the
11

underlying claim itself lacks merit.”). Petitioner was not denied the effective assistance of
appellate counsel because his proposed claim is without merit.
In sum, petitioner fails to demonstrate that the state court adjudication of his claim was
contrary to, or resulted in an unreasonable application of, clearly established federal law.
Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus is denied and
dismissed.

IT IS FURTHER ORDERED that a certificate of appealability is denied because
petitioner has failed to make a substantial showing of the denial of a federal constitutional right,
and leave to appeal in forma pauperis is denied because the appeal would be frivolous. See Dell
v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002).

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: April 28, 2017
Detroit, Michigan

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on April 28, 2017.
s/Johnetta M. Curry-Williams
Acting in the Absence of Carol Mullins
Case Manager

12